R. v. W.F.G. Date:, 2013 BCPC 302

Citation: R. v. W.F.G. Date: 20131003 2013 BCPC 0302 File No: 34803-1 Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BAN ON PUBLICATION 486.4(2) CCC RESTRICTED ACCESS REGINA v. W.F.G. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: G. Merke Counsel for the Accused: J. Wright Place of Hearing: Port Alberni , B.C.

Date of Judgment: October 3, 2013 THE COURT (orally): Introduction [1] W.F.G. (the "Accused") is a 44-year-old First Nations male. He is before the court for sentencing, having pled guilty to havingsexually assaulted his stepdaughter, S.J. (the "Complainant"), on or about March 22, 2012. The Accused performed non-consensual analintercourse on the Complainant while the Accused was highly intoxicated and the Complainant was unconscious due to excessivealcohol consumption, all following a party at the Accused's residence.

The Complainant's boyfriend lay unconscious, apparently due toalcohol consumption, on the bed beside her at the time of the sexual assault. [2] Neither the Accused nor the Complainant apparently have any recollection of these events due to their high levels of alcoholintoxication. The sexual assault was witnessed by a son and daughter of the Accused who were approximately 10 and 15 years of agerespectively at the time of the offence. The 15-year-old daughter yelled at the Accused and demanded that he leave the familyresidence.

That apparently interrupted the sexual assault that was taking place. [3] The Accused's spouse, being the mother of the Complainant, was absent from the house at another relative's residence whenthe sexual assault occurred. She returned when called by her children who had witnessed the sexual assault.

Those children wereextremely upset. [4] Although the Complainant did not live with the Accused and her mother at the time of the offence, she apparently having lefthome at age 16, the relationship of the Accused and the Complainant was described in reports before the court (referred to and moreparticularly identified below) as "close," and the Accused as the only father that the Complainant remembered.

Issues [5] The issue before the court is to determine what is a fit sentence for this offender having regard to the whole of thecircumstances, the principles of sentencing set out in the Criminal Code, and having regard to the principles of sentencing relating toaboriginal offenders enunciated by the Supreme Court of Canada in R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, and asrecently considered, applied and restated by the Supreme Court in R. v. Ipeelee, 2012 SCC 13 , [2012] S.C.J. No. 13.

The Accused's Personal Circumstances [6] The Accused's personal circumstances are available from a variety of sources before the court. They are as follows: (

a) a pre-sentence report completed by C.L. Blais, a probation officer with the Port Alberni Corrections Office. That report wascompleted July 5, 2013. It contains a Gladue component (the "Pre-Sentence Report"); (

b) a psychological/psychiatric assessment, including a risk assessment, completed by Dr. Kimberly L. Kreklewetz, a registeredpsychologist with Forensic Psychiatric Services Commission, Nanaimo Regional Clinic (the "Assessment Report"); (

c) a personal address made to the court by the Accused's father, W.G. Senior, a retired [deleted for publication] employee of thefederal government with 35 years' service; (

d) a personal address made to the court by R.L., a pastor, friend of the Accused, and long-time resident of the Accused's homecommunity of [deleted for publishing]; (

e) an address made to the court in person by the Accused; (

f) a series of letters of support entered as Exhibit 1 from friends and Band leaders and from addiction recovery organizations, suchas [deleted for publishing] where the Accused has actively participated in Alcoholics Anonymous following the offence. There is also aletter from the [deleted for publishing] Recovery Centre where, on April 9, 2012, shortly after the offence, the Accused started andsuccessfully completed a 42-day residential treatment program for his alcohol and other intoxicant abuse issues; and (

g) the able submissions of Mr. James Wright made on behalf of the Accused. [7] The Pre-Sentence Report and the Assessment Report are comprehensive, well-written, and very useful for the court. They canbe characterized as positive reports and favourable for the Accused. [8] I will now turn to a brief description of the personal circumstances of the Accused. [9] As noted above, he is 44 years of age. He has been married for 17 years to his wife, M.G. She has two young adult childrenfrom a previous relationship, one of them being the Complainant.

As a couple, they have three surviving children presently between theages of 16 and eight years. There was another child of their union who previously died under tragic circumstances. The Accused has anadult son, from a previous relationship, with whom he maintains contact. [10] The Accused's education may be described in the following fashion. He is one credit short of completing his grade 12. He hasattended a number of schools while living at home with his parents, which included attending day schools which apparently were part ofthe residential school system.

There, he experienced physical and psychological abuse, including excessive use of corporal punishment.

[ 11 ] After completing his education, the Accused trained in culinary arts and is certified as a chef. He has worked successfully as a Native carver. He is presently a Native commercial fisher with his own boat and working under his Band's licence. He has what can be described as a good work history. [ 12 ] At the time of the offence, the Accused held the position of hereditary chief which had been bestowed upon him by his own father who previously held that status.

The Accused has been highly active in the political affairs of his Band and in the cultural life and the cultural events of his First Nations community. Often his duties and responsibilities took him away from his community and his family while attending to the affairs of his community. [ 13 ] As a result of this offence and concerns within his own community about this offence, the Accused's status as a hereditary chief was taken away from him by his father.

In court, the Accused's father apologized for his son's behaviour and the hurt that it has caused within the family and within the community. [ 14 ] The Accused grew up in a full and bustling household with supportive and generous parents, who, with other family members, were in attendance during the initial sentencing proceedings, along with other supportive friends. [ 15 ] The Gladue component of the Pre-Sentence Report is comprehensive. It states, in part, at page 7 as follows [as read in]: W.F.G's parents were both in the residential school system.

His father was badly abused within the system and received the standard compensation from the federal government given to victims of these offences. His mother attended a day-school program and was part of the same system, as did W.F.G. himself. The longer-term aspects of the abuse suffered by his parents are felt by their children in their ability to parent in an effective and healthy manner and in the lifestyle choices made to quiet the impact of the abuse on their own psyche.

Chronic alcoholism and/or drug addiction is often suffered and modelled to the children as a way to cope with life issues. [ 16 ] The Accused's father spoke in court directly about the "backlash" of his own angry behaviour that arose from his residential school experience. That experience gave rise to his own binge drinking which "rippled through his entire family" and took a significant toll. He eventually achieved and has maintained his own sobriety for approximately the last 10 years. [ 17 ] Substance abuse has been a significant issue that the Accused has had to deal with for many years.

The Assessment Report describes it as follows at page 5 [as read in]: W.F.G. stated that he has been drinking alcohol since the age of 12. At that time, he drank only on weekends. His quantity and frequency of alcohol consumption steadily increased over the year, including daily use for a period of time. W.F.G. acknowledged developing a tolerance to alcohol as well as experiencing withdrawal symptoms such as irritability. Most recently, his typical alcohol consumption consisted of a six-pack of beer and a couple of vodka energy drinks a few times per week.

He did drink alone on occasions but denied drinking to intoxication by himself.

He admitted that others such as his uncles and employers had commented that his drinking was interfering with his work. [ 18 ] Following the offence, the Accused took immediate steps to deal with his substance abuse issues, including the residential treatment referred to above and engaged in active participation in the supportive recovery programs also described above. [ 19 ] Drawing on the available information from the residential treatment program, the Pre-Sentence Report at page 3 describes the Accused as "something of a role model to some of the other participants by his participation in his spirituality and his sharing of this with others and allowing them to accompany him to the river while he practised some of his faith rituals." [ 20 ] The Accused has no prior related convictions for the offence subject of this sentencing.

He does have a dated mischief conviction in 1989, an impaired driving conviction in January of 2010, and in April 2013, a Motor Vehicle Act conviction for driving while his licence was suspended. [ 21 ] The risk assessment contained within the Assessment Report at page 9 provides the following conclusion [as read in]: Overall, at this juncture, W.F.G.'s risk for sexual reoffending should be considered to fall within the Low to Low-Moderate range. Substance abuse, particularly alcohol, appears to be a prominent risk factor for this individual.

It is this writer's opinion that when sober, W.F.G.'s risk to reoffend sexually is best characterized as Low. However, when under the influence of substances that impair his judgment and decrease inhibition and behavioural controls, his risk level is thought to significantly increase moving into the Low- Moderate range. [ 22 ] As a result of the Accused's behaviour giving rise to the charges before the court, the immediate family unit of the Accused has been shattered.

The Accused's wife has agreed with the child protection agency to not allow the Accused to have contact with the children, without the approval of the social worker.

According to page 4 of the Pre-Sentence Report, it will be necessary for the Accused to complete a sex offender treatment program and have a relapse prevention plan as well as to complete other required counselling and to maintain a clean and sober condition before he will be permitted to have even supervised contact with the children. [ 23 ] The Pre-Sentence Report contains the following victim information found at page 4 under the heading "Victim Information" [as read in]: The victim of the offence (S.J.) states that she has been emotionally and physically affected by the offence.

She has struggled with guilt over the fact that she was the person who provided the money for the purchase of the alcohol. She is upset for her siblings and her

mother that the family unit has been broken up. Although she has been assured her behaviour was not the cause of this, she continues to feel badly about it. W.F.G. is the only father that S.J. remembers. She does not wish any contact with him at this time. I have spoken with the mother of the victims of the offence. The primary victim of the offence is S.J.; however, the younger children who were witness to this offence against their older half-sister are also victims and continue to pay a high price for their father's behaviour.

M.G. and the [deleted for publication] social worker report that the children were all seen by helping professionals following the offence, and a file was opened to assist the mother in dealing with the issues and to provide support. [ 24 ] The Victim Information component of the Pre-Sentence Report goes on to indicate that the children are missing their father, which is understandable.

It also goes on to indicate that the mother herself has had significant disruption in her educational pursuits; there is also an indication that she misses being able to speak with the Accused and tell him of the children's accomplishments. [ 25 ] There is a clear indication based upon the statements made to the court by the Accused, by defence counsel, and Mr. R.L., and based upon the information contained within the Pre-Sentence Report and the Assessment Report, that the Accused is both genuinely and highly remorseful and apologetic for his behaviour.

He accepts full responsibility for the offence and shows good insight into the victim impact and also the negative effects of the offence on his First Nations community. [ 26 ] The well-being and the recovery of the individual victims and the collective victim, being that of his First Nation community, are both recognized and emphasized. Fundamental Principles of Sentencing [ 27 ] The fundamental principles of sentencing are set out in ss. 718 , 718.1 , and 718.2 of the Criminal Code .

Section 718 , under the heading "purpose," provides as follows: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 28 ] To achieve these objectives, a sentencing judge must also be mindful of the fundamental principle of proportionality of the sentence to the gravity of the offence. This degree of the gravity and the proportionality principle is set out in s. 718.1 . It reads as follows: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 29 ] In s. 718.2 of the Criminal Code , Parliament has established other sentencing principles.

It reads as follows: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or

(

v) evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 30 ] Of particular relevance in this case are subsection (a) (iii), that is, abuse of a position of trust, and subsection (e) , which deals with aboriginal offenders. [ 31 ] I have no doubt that the nature of the parent-child relationship between the Accused and the victim in this case brings into play the statutory aggravating factors set out in s. 718.2 (a) (iii). [ 32 ] The 2014 Judicial Edition of Martin's Annual Criminal Code , at pages 1459 and 1460, provides a very useful

summary of the significance of two cases considered by the Supreme Court of Canada which instructs sentencing judges regarding the implications of subsection (e) . Those cases are Gladue and Ipeelee . The

summary in Martin's describes the different approach that must be taken when dealing with the sentencing of an aboriginal offender, as is the present case before this court: Paragraph (

e) is not simply a codification of existing jurisprudence. Its purpose is to ameliorate the serious problem of overrepresentation of aboriginal people in prison, and to encourage sentencing judges to have recourse to a restorative approach to sentencing. It directs sentencing judges to undertake the sentencing of aboriginal offenders individually, but also differently, because the circumstances of aboriginal people are unique. The judge must therefore consider the unique systemic or background factors that may have played a

part in bringing the offender before the court and the types of sentencing procedures and sanctions that may be appropriate in the circumstances because of the offender's heritage or connection. While judges may take judicial notice of the broad systemic and background factors and the priority given to restorative justice, the court should be provided with case-specific information by counsel or in the pre-sentence report.

Whether the offender resides on a reserve, in a rural or an urban area, the judge must be made aware of alternatives to incarceration that exist whether inside or outside the aboriginal community. This paragraph should not, however, be taken as a means of automatically reducing the prison sentence of aboriginal offenders. The sentence imposed will depend upon all the factors that must be taken into account in each individual case. It is unreasonable to assume that aboriginal people themselves do not believe in the importance of the objectives of denunciation, deterrence and separation.

Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same. The class of aboriginal people who come within this paragraph must be, at least, all who come within the scope of s. 25 of the Charter and s. 35 of the Constitution Act, 1982 and this paragraph applies to all aboriginal offenders, not just those on a reserve: R. v. Gladue [citation omitted]. Continuing on: In R. v.

Ipeelee [citation omitted], the Supreme Court of Canada reaffirmed the special sentencing approach in respect of aboriginal offenders and, in particular, addressed the application of those principles to the breach of a long-term supervision order. This provision requires the court to use a different method of analysis in determining a fit sentence for aboriginal offenders. A judge must consider (

a) the unique systemic or background factors which may have played a

part in bringing the particular Aboriginal offender before the courts; and (

b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection. Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information must come from counsel and from the pre-sentence report.

Courts must take judicial notice of such matters as the history of colonialism, displacement and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and higher levels of incarceration for Aboriginal peoples. While these factors, on their own, do not necessarily justify a different sentence for an Aboriginal offender, they provide the requisite context for considering the case-specific information.

Failing to take these circumstances into account would violate the fundamental principle of sentencing that requires the sentence to be proportionate to the gravity of the offence and the degree of responsibility of the offender. To the extent that the application of the Gladue principles leads to different sanctions for Aboriginal offenders, thereby implicating the parity principle contained in s. 718.2, those differences will be justified based on the unique Aboriginal circumstances. These principles apply equally in considering the breach of a long-term supervision order.

The failure to consider the Gladue principles constitutes an error justifying appellate intervention. Sentencing Position of Crown [ 33 ] The sentencing position of Crown may be summarized in the following fashion. Crown seeks: 1. a period of incarceration of two years less a day; 2. a two-year probation order;

3. a DNA order in Form 5.03; 4. a s. 109(1) (

d) prohibition for 10 years for non-restricted weapons and a lifetime ban on restricted weapons; 5. a Sex Offender Information Registration Act order for a 20-year duration; and 6. a s. 743.21 order for no contact with the victim while the Accused is in custody. [ 34 ] In Crown's submissions, the principles of denunciation and deterrence are emphasized. Crown notes that there has been a historical rampant sexual abuse of females in West Coast communities and, in particular, within West Coast First Nations communities.

This, says Crown, may be explained by the excessive use of alcohol; however, that explanation should not be regarded as an excuse. In Crown's submission, a message must be sent to the communities that the courts will protect young people from this type of predatory sexual behaviour that has occurred in the past several years. [ 35 ] Crown has referred the court to and relies upon several cases. They are as follows: R. v. B.(B.S.) , 2008 BCSC 1526 , a decision of the British Columbia Supreme Court; R. v.

B.(B.S.) , 2010 BCCA 40 , the decision of the Court of Appeal decision in the aforementioned Supreme Court decision; R. v. Craig , 2005 BCCA 484 ; R. v. Novak , 2006 BCSC 848 ; R. v. R.R.M. , 2009 BCCA 578 ; R. v. Williams , 2011 BCCA 194 ; and R. v. D.T.G. , 2013 BCPC 156 . [ 36 ] In submissions, Crown has usefully referred the court to the analysis and guidance of Mr. Justice Romilly of the British Columbia Supreme Court in the decision of R. v. B.(B.S.) specifically at paragraphs 35 and 36. Paragraph 35 of Mr.

Justice Romilly's decision is referred to for the proposition that the British Columbia cases establish that the range of sentences for sexual assault where sexual intercourse takes place is two to six years. At paragraph 36, Mr. Justice Romilly sets out the factors to be considered in imposing a sentence for a sexual offence. [ 37 ] The first of the indicated factors may be summarized as follows: the nature and intrinsic gravity of the offences which is affected by, in particular, the use of threats, violence, psychological threats, and manipulation.

It is Crown's position that that is not part of the offender’s behaviour in the matter that is before the court. However, the lack of any of those factors is, in Crown's submission, not a mitigating factor. [ 38 ] The second factor is the frequency of the offences and the time period over which they were committed. In this case, Crown accepts that there was only one incident of sexual assault. [ 39 ] The third factor is the abuse of trust and the abuse of authority which are involved in the relationship between the offender and the victim.

In this particular case, Crown indicates that the relationship between the Accused and the victim is the most serious factor that must be considered. [ 40 ] Fourth is the disorders underlying the commission of the offences: the offender's psychological difficulties, disorders, and deviancy, intoxication, etc.

Crown indicates that the disorder which is relevant and must be taken into consideration in this matter is the issue of intoxication and also the Accused's addiction to alcohol. [ 41 ] The fifth factor is the offender's previous convictions: the proximity in time to the offence charged and the nature of the previous offences.

Crown concedes that there are no previous convictions for the type of offence for which the offender is presently before this court. [ 42 ] Sixth, the offender's behaviour after the commission of the offences: confessions, collaboration in the investigation, immediate involvement in a treatment program, potential for rehabilitation, financial assistance if necessary, compassion and empathy for the victims (remorse, regret, etc.) Crown concedes that the offender in this matter quickly entered into a treatment program.

There is, based on both the Pre-Sentence Report and the Assessment Report, also confirmation of a significant potential for rehabilitation. [ 43 ] The seventh factor is the time between the commission of the offences and the guilty verdict as a mitigating factor depending upon the offender's behaviour (the offender's age, social integration and employment, commission of other offences, etc.) Crown points out that a relatively early guilty plea was entered into by the Accused in this matter.

That has had the benefit of not requiring the Complainant to testify either in a preliminary inquiry or at a trial of this matter. [ 44 ] The eighth factor is the victim: gravity of the attack on his or her physical or psychological integrity reflected by, in particular, age, the nature and extent of the assault, the frequency and duration of the assault, the character of the victim, his or her vulnerability (mental or physical handicap), abuse of trust or authority, lingering effects, etc. Crown says that in the case before me the Complainant is a young person at age 21.

There has been significant trauma caused to the victim by the sexual assault. The long-term effects on the victim are at this time unknown. However, there is a clear indication that the Complainant feels guilty about the overall effects of the sexual assault of her on other family members. [ 45 ] I note for the record that the decision of Mr. Justice Romilly in the Supreme Court decision of R. v. B.(B.S.) was upheld and affirmed by the British Columbia Court of Appeal in their decision. [ 46 ] Crown then relies on R. v.

Craig for the proposition that an accused's intoxication is not a significant mitigating factor: see Craig at paragraph 15 . [ 47 ] Similarly, in R. v. Novak , the Supreme Court says, at paragraph 6 of that decision, as follows: [6] Counsel also suggests that the offences were induced by alcohol and drugs and that Mr. Novak’s judgment was impaired. However, where substance abuse results in bizarre and dangerous behaviour, it will not be excused ( R. v. Dick , [2000] Y.J. No. 87

(T.C.) ). In my opinion, this is not a mitigating factor. [ 48 ] Crown does submit to this court that the length of the sentence that is imposed on the accused must balance the Gladue factors with the other principles of sentencing set out in the Criminal Code . [ 49 ] Crown then refers to R. v. R.R.M. That decision of our Court of Appeal dealt with an appeal by a Native offender who was sentenced initially to two years' imprisonment followed by three years' probation for the sexual assault of his 14-year-old stepdaughter.

The decision raises some of the concerns that are before this particular court. [ 50 ] In the R.R.M. decision, the accused was raised on a First Nations community where there was rampant sexual abuse and substance abuse. The offender in that case had been the subject of physical, emotional, and sexual abuse as a child, and that similar environment carried through to the community in which the offender was living at the time that the offence was committed. In R.R.M. , the court stated at paragraph 22 as follows: [22] In R. v.

S.G.N. , 1999 BCCA 738 , 133 B.C.A.C. 277, a 12-year global sentence was reduced to 9 years for two counts of sexual intercourse with a female under the age 14, and two counts of sexual assault that were committed 20 years earlier by an Aboriginal offender. In concurring reasons, Lambert J.A. observed at para. 41: I agree with Mr.

Justice Braidwood that it is particularly important that all the protections of the criminal law be extended to First Nations women and that this new provision in the Criminal Code [s. 718.2 (e) ] should not be permitted to do anything towards lessening the protection that they must be accorded. [ 51 ] As a result of this analysis, the original custodial sentence was upheld by the Court of Appeal. [ 52 ] Crown has also referred me to R. v. Williams . This is a 2011 decision of our Court of Appeal.

It is of some significance to the case at bar since it arose out of a sexual offence committed within the same local area. The facts briefly are that the offender in that case was aged 41 and he had pleaded guilty to sexual assault of a 14-year-old girl who was unconscious at the time. The sexual assault was in the nature of placing his hand in the vagina of the unconscious victim. The decision of Madam Justice Newbury at paragraph 5 states as follows: [5] The sentencing judge reviewed Mr. Williams' personal circumstances and the circumstances of the offence in his reasons.

He agreed with the Crown that the main concern in this case was denunciation and deterrence, especially given the victim's age. He then said this: [17] Another very important aspect of my decision today is based on me and my personal experience in coming to this community almost every month for the last 17 years. Over that period of time there have been a large number of cases where women had consumed too much alcohol, went to bed, fell deeply asleep or passed out, and were then taken advantage of by a male and sexually assaulted in the bed in the home in which they felt safe.

For a very long time now I have been treating this very seriously and trying to deter people from this behaviour. I have to admit, in the last few years it seems that we have had fewer of these cases. It probably does not have anything to do with me, but a recognition in the communities that this has been a problem, but it does occur from time to time and in this case it did occur.

It is exactly the same pattern as we have seen a number of times, except that I have to admit in this case, with the victim only being 14 years old, that is a special aggravated factor. [18] I have felt that for years, that when considering the provisions in the Code in regards to aboriginal offenders and the Gladue case, I also have to consider the aboriginal communities in this area.

I have had very many aboriginal people, citizens and leaders, speak to me and say that they are equally concerned about some of the things that a very few of their members perpetrate against their own people, and they are as concerned about their children as non-aboriginal people, and as one said to me years ago, "It doesn't matter if my child is attacked or abused by an aboriginal offender or by a non-aboriginal offender, my child still suffers." So I feel that in these kinds of sentencings, I need to speak to those aboriginal communities and to the aboriginal parents and say to them, "I will do everything that is in my power to deter people from inflicting themselves in this manner on your children." [ 53 ] At paragraph 9 of Williams , Madam Justice Newbury continues, in part, as follows: [9] There is much to be said for the sentencing judge's concern for the protection of Aboriginal victims such as this child, and for the role of deterrence in the Aboriginal community.

I do not believe, however, that the Court neglected to give weight to the systemic factors in s. 718 or to rehabilitation generally. [ 54 ] Madam Justice Newbury then goes on to uphold the two year imprisonment sentence of the trial judge that had, as one of its main foundational concerns, the protection of the community and a necessary amount of denunciation and deterrence. [ 55 ] Crown has also referred me to another local decision of my brother Judge Gouge in the case of R. v. D.T.G. In that particular

case, the Honourable Judge Gouge imposed a four-year custodial sentence on the offender. I am given to understand that that decision ispresently under appeal, but it highlights the potential range of a sentence, particularly where there are aggravating factors which in thatparticular case included a long-time continuing sexual assault on a child of tender years that continued for an extended period of time;there was also a concern on the part of Judge Gouge that there was a lack of insight on the part of the offender into the effect of hisbehaviour on the victim.

Sentencing Position of Defence [56] The defence submission that I heard from Mr. Wright emphasizes various aspects of the Accused's own personalcircumstances. Defence does not take issue with Crown's submission that denunciation and deterrence are the prime factors that shouldbe taken into account in determining a fit sentence. However, as part of the defence submission, it is stated that deterrence is notrequired specifically with respect to the Accused in this case. In the words of Mr.

Wright, the Accused here has done everything "tomake this right." It is the defence’s submission that the principles of denunciation and deterrence must be tempered by the principles setout in Gladue and Ipeelee. [57] The defence submission refers me to the Pre-Sentence Report and also to the Assessment Report. It points out many of theGladue factors that I have previously mentioned.

It points out to me that there has been a significant loss by the Accused within hiscommunity as a result of his offending behaviour; in particular, the loss of status as a hereditary chief which is a status held within hisfamily apparently for 12 generations. [58] Also, emphasis has been placed on the fact that from the very outset there has been recognition by the Accused that hisbehaviour has had a very significant impact on the victim, the Complainant in this case. I am told that the Accused has made a publicapology for his behaviour to his community.

He has engaged in rehabilitative treatment immediately and on his own accord. The issueof severe or extreme intoxication, in this case, is not being utilized as an excuse but simply as an explanation for behaviour which, it issubmitted, is out of character for the Accused. Emphasis is placed on the significant remorse that has been evidenced both in the Pre-Sentence Report, also in the Assessment Report, and in direct submissions to the court. [59] As far as the risk assessment is concerned, it is submitted that the Assessment Report indicates a “low risk” to offend. That,says Mr.

Wright, is the lowest possible categorization of risk to offend and should, of course, be taken into account in determining a fitsentence. Defence takes no issue with the consideration that this matter statutorily brings into play for sentencing the breach of trust andthe relationship between the Accused and the victim. [60] It is submitted that the range for cases for sexual assault as set out in R. v.

B.(B.S.) must take into account the particularcircumstances of that case involving a 30-year-old male Corrections officer who had predatorily tracked down and then utilized a date-rape drug in order to render the victim, in that matter, unconscious and then to have unprotected sex resulting in the victim acquiring asexually transmitted disease. It is also indicated that I must read that particular case in the context that it was decided prior to Ipeelee. [61] In defence submissions, again, emphasis is placed on a very early guilty plea being proffered by the Accused. [62] The case of R. v.

R.R.M. is distinguished by defence on the basis of a very young person being the victim in that particular caseand the apparent lack of remorse by the offender in that particular case. That particular case, it is also noted, predates Ipeelee. [63] Defence then relies on other cases as follows: R. v. Bernier, 2003 BCCA 134; R. v. H.(D.A.), (ON CA),171 C.C.C. (3d) 309; and R. v. Sutherland, 2009 BCCA 534. [64] In Bernier, the court dealt with the concept of a "range" in sentencing.

Bernier is submitted to me in support of the propositionthat the term “range” in sentencing cases is only a short way of describing what the Court of Appeal has done in previous appeals inwhich the offence and the offender were similar to those in the case being considered by the court. The range does not preclude, ongrounds of deterrence or denunciation or the gravity of the particular offence, a sentence different from the "range" nor does the "range"preclude a lesser sentence if some special circumstances warrant such a course of action. [65] The decision of R. v.

H.(D.A.), a decision of the Ontario Court of Appeal, dealt with a 24-year-old First Nations offender. Thesexual assault was on a half-sister who was under the foster care of the offender when she was only 14 years of age. The trial judgesentenced the offender in that case to a conditional sentence of 18 months followed by one year's probation. Crown had sought apenitentiary sentence of three to five years and therefore appealed. The Ontario Court of Appeal indicated that there was no denying thatthe offence was serious and that it was aggravated by the abuse of authority.

However, while taking into account the Gladue principles,the court concluded that it was necessary to increase the conditional sentence to two years less one day and to increase the probationperiod to two years with specific conditions including community service. [66] The defence also relies upon the decision of the Court of Appeal in R. v. Sutherland. This again dealt with an aboriginaloffender. At the trial, the accused was sentenced to one year incarceration plus a lifetime prohibition from attending at communitycentres. The Court of Appeal reduced the period of incarceration to nine months.

In doing so, the court determined that it wasappropriate to temper the period of incarceration with the circumstances of the accused as an aboriginal offender. [67] The offender in that case had previous convictions for sexual assault. As I read the case, there were four prior sexual assaults. Alcohol appeared to be a significant issue. At paragraph 20 of the decision, the court states as follows: [20] In my view, a sentence of 12 months is within the range of sentences appropriate in the circumstances of this case.

It speaks todenunciation and deterrence and ensures the appellant could undertake the recommended rehabilitation program. It is appropriate totemper that period of incarceration with the circumstances of the appellant as an Aboriginal. To reduce it to nine months would reflectthose circumstances and would still allow him to participate in the recommended program.

[ 68 ] In

summary, Mr. Wright says, quite correctly, that this is a horrible situation, but he also emphasizes that the Accused in this case has done everything right to attempt to put both his life back on a proper pro-social setting and has also taken steps to apologize within the community and, to the extent possible, to acknowledge the significant harm that he has caused to the victim.

All of this has come at what is described as an “extreme cost” to the Accused insofar as he has lost a cherished status as a hereditary chief and has obviously caused tremendous heartache within his own community. [ 69 ] Accordingly, the position advanced by Mr. Wright is that this matter, taking into account what he describes as a highly isolated situation and taking into account the mitigating factors, should result in a custodial sentence of nine months with a probation order of at least two years.

Analysis [ 70 ] I accept the aggravating and mitigating factors that have been outlined by counsel as relevant and applicable to this particular case. It is clear to me that this accused is genuinely remorseful for his offending behaviour and, in particular, is remorseful for the significant harm that it has caused both the Complainant as well as his own family. I am satisfied that it is very unlikely that the Accused will reoffend. The only proviso to that conclusion is that the Accused must continue to get treatment and to maintain his sobriety.

I acknowledge that he has taken great strides to achieve his own personal rehabilitation. I also acknowledge that there will be a need for him to continue with active rehabilitation in the future. [ 71 ] I accept that the range of sentences in this case for sexual assault where sexual intercourse does take place is as stated in R. v. B. (B.S.) ; that range is two to six years. I do not accept the defence submission which is, as I understand it, that I should not be placing much reliance on the notion that there was actual sexual penetration by the Accused on the Complainant in the course of the sexual assault.

It is part of that submission that certain assumptions may have been made by the two young witnesses. [ 72 ] I am satisfied that the circumstances as outlined by Crown, even in the absence of penetration being achieved, amount to a very significant sexual assault on a very vulnerable complainant.

Accordingly, I must deal with any sentencing as if sexual intercourse did occur. [ 73 ] I understand from the submissions and comments that I have received in the course of the overall submissions that some form of restorative justice has occurred within the Accused's aboriginal community, but I also understand incarceration is accepted as a sentencing outcome both by the Accused and by his community. [ 74 ] I am of the view that general denunciation and deterrence must be the primary concern in this case.

This type of offending behaviour of the Accused must be denounced, and the sentence must serve as a warning and a deterrence to those both in the general community and in the Accused's home community that significant consequences will flow from this type of offending behaviour. [ 75 ] Having full regard to the applicable Gladue factors in this case and also taking into account the steps that have been taken by the Accused and the responses both to his community and from his community, I am of the view that the appropriate sentence in this case is a 12-month custodial sentence followed by 28 months of probation. [ 76 ] There will be a SOIRA order for 20 years. [ 77 ] There will be the DNA order being sought by Crown. [ 78 ] There will also be the s. 109(1) (

d) order for 10 years on non-restricted weapons and a lifetime ban on restricted weapons beginning upon his release from custody. [ 79 ] There will be a s. 743.21 no-contact order with the Complainant while the Accused is serving his custodial sentence. [ 80 ] I will waive the victim surcharge. [ 81 ] I will now deal with the probation conditions.

I did not receive any direct submissions on that topic, and I am certainly prepared, before I impose those conditions, to hear from counsel. [SUBMISSIONS RE TERMS OF PROBATION] [ 82 ] THE COURT: First of all with respect to the probation conditions that will apply, I am going to explain to you, Mr. G., that the conditions that the court imposes upon you are things that you must do. They cannot be regarded by you as something in the nature of an inconvenient suggestion.

If you fail to abide by the terms of the probation order, it could give rise to further charges being laid against you and, accordingly, further appearance in court.

Therefore, the probation conditions will be as follows: [ 83 ] First, keep the peace and be of good behaviour and attend court when required to do so by the court. [ 84 ] Second, I am going to require that you must report to and be under the supervision of a probation officer, and you must report in person within 72 hours of your release from custody, in person, to a probation officer here in Port Alberni at the address that will be provided to you, and thereafter as directed. [ 85 ] The third condition is that you must reside in a residence approved of by your probation officer and you must not change that residence without the prior written permission of a probation officer. [ 86 ] Fourth, I am going to impose the condition that you must abstain absolutely from the consumption of alcohol and any other intoxicating substances. [ 87 ] Fifth, I am going to impose a condition that you are not to be found on the premises of any pub, nightclub, tavern, or other establishment where alcoholic beverages are the primary commodity for sale.

That includes, without limitation, liquor stores and beer

and wine stores. [ 88 ] Sixth, I am going to impose a condition that you must abstain absolutely from the use, possession, or consumption of any illicit or illegal substances as defined by the Controlled Drugs and Substances Act unless with a valid medical prescription. [ 89 ] Seventh, I am going to impose a condition that you must attend, participate, and complete any psychological/psychiatric programming or counselling or assessment as directed by your probation officer, including but not limited to a sex offender treatment program and drug and alcohol counselling. [ 90 ] Eighth, I am going to impose a condition that you are not to have any contact, directly or indirectly, with the victim, S.J., and you may not attend at any residence, place of employment, or place of education of S.J. during the term of the probation order. [ 91 ] Last, I am going to impose the recommended condition in the Pre-Sentence Report.

You are not to have any contact, directly or indirectly, with any of the children of the marriage except by agreement with the [deleted for publication] Family and Child Services and under their direction. [ 92 ] Those are the conditions that I understand are being recommended, and that will therefore conclude my reasons for judgment in this matter. [ 93 ] MR. WRIGHT: Thank you, Your Honour. [ 94 ] MR. MERKE: Thank you, Your Honour. [ 95 ] THE COURT: I wish you luck, Mr. G. (REASONS CONCLUDED)